February 13, 2009

Uncertain ‘Blue Slip’ Policy Could Affect 4th Circuit

A possible change in how the Senate Judiciary Committee takes into account senators’ views regarding home-state judicial nominees could have an impact on the U.S. Court of Appeals for the 4th Circuit.

As Legal Timesreported in December, President Barack Obama has an opportunity to shift the balance on what has been known as one of the country’s most conservative appellate courts. The 15-judge 4th Circuit has four vacancies, including one that dates back 14 years, so Obama has a chance to add to the court’s five judges appointed by Democratic presidents.

The court covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

By tradition, the chairman of the Senate Judiciary Committee often defers to the wishes of a state’s two senators when evaluating a president’s nominee from that state. The chairman sends each senator a form known as a “blue slip,” and the failure of either senator to return the form and indicate his or her support has at times been enough to foil a nomination. A senator can withhold the form for any reason, including partisanship.

The tradition dates to at least 1917, according to a 2008 analysis
(pdf) by the Congressional Research Service. It is not set out in the Judiciary Committee’s formal rules, and some chairmen have been stricter than others in following it.

Committee Chairman Patrick Leahy (D-Vt.) said Thursday that he’s in talks with Sen. Arlen Specter (R-Pa.), the committee’s ranking Republican, about how to apply the “blue slip” tradition. “We’ll work out a policy,” Leahy said. He declined to elaborate.

Specter, at the center of negotiations this week over the $789 billion economic stimulus bill, has not spoken publicly about possible changes. A spokesman had no comment. Congressional Quarterlyfirst reported last week that Leahy is reconsidering the tradition.

To the extent that partisanship has a role, the policy should have little impact on appointees from three of the 4th Circuit states—Maryland, Virginia, and West Virginia—because each has sent a pair of Democrats to the Senate. But adherence to tradition would allow one of North Carolina’s senators, Republican Richard Burr, and either of South Carolina’s senators, Republicans Jim DeMint and Lindsey Graham, to delay or stop the confirmation of appointees from those states. Spokesmen for the three Republicans either had no comment or did not return calls.

North Carolina has only one judge on the 4th Circuit, though it is the largest state in the circuit by population. Some lawyers there want the state to get as many as three of the four vacant seats.

Debate over the “blue slip” tradition pits two competing principles against each other: Supporters say it helps to enforce the idea that a president should seek the advice of senators when choosing nominees, while opponents say that the president should not be beholden to senators’ sometimes-trivial whims.

But the debate also falls along partisan lines, depending on which party controls the presidency. In a letter
(pdf) sent Thursday to Senate Majority Leader Harry Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.) promised that Republicans would try to enforce requirements “honoring the traditions of the Senate” for judicial nominees. He did not elaborate.